Misleading Advertising

Advertisements surround us. Every day we are exposed both consciously and unconsciously to advertising. Marketers want to promote their products and so they tend to highlight the benefits and hide the deficiencies of what they are trying to sell. Very often they cross the thin line between what is true and what is false.

“False or misleading advertising” is defined by EU law as being:

Any advertising which, in any way, either in its wording or presentation:

Deceives or is likely to deceive the person to whom it is addressed or to whom it reaches

By reason of its deceptive nature, is likely to affect their economic behaviour

Or for those reasons, injures are likely to injure a competitor

Spanish law has a similar definition called “false advertisement” which is advertising that can : induce an error ; mislead its recipients ; affect their economic behaviour or damage or be likely to damage a competitor. False advertisement can also include any publicity that excludes fundamental data related to the promoted goods or services as long as the omission induces the consumer into error.

The list of tactics used by misleading advertising is long but we can give the most common examples:

Service conditions written in almost unreadable small print

Inclusion of unverifiable statements like “number one in sales”

Disguised advertisement, for example presenting a publicity spot like a news report

Publish a discount percentage without mentioning the original price

Offer the false impression of offering a present or a free service

Give false information in order to induce the consumer into buying a product or service

Real examples of false advertising

Misleading advertisements are extremely common and unfortunately many of them goes undetected by authorities and are left unpunished. We can see them everyday in in printed press and magazines.

One of the most well known cases of false advertisement is the Power Balance bracelet. Power Balance was a brand of bracelet claimed by it manufacturers to “use holographic technology” to “resonate with and respond to the natural energy field of the body”, and to increase sporting ability. The product was endorsed by many paid sport celebrities. Different independent studies done worldwide on the product concluded that it was nothing more than a placebo. In November 2011 Power Balance filed for bankruptcy because of repeated fines made by many governments (including Spain) for infringing false advertisements laws.

Another more mundane example is coming from mobile operators that are regularly fined by the different EU governments for false advertising by including clauses in small prints, by omitting important information about the services or by blatantly including false claims.

Legal protection against misleading advertisement

There are several laws that we have to take into account:

Directive 2006/114/CE of the European parliament

Spanish General publicity law (Ley General de Publicidad LGP), 34/1988 of the 11th November. This law received several updates, the most recent one on the 28th December 2012.

Spanish law 7/2010 of the 31st March on Audio-visual communication

Obviously there is no clear-cut way to determine if a specific advertisement is misleading or not as the difference can be very subtle. There are various parameters that can be used as quoted from directive 2006/114/CE:

The characteristics of goods or services, such as availability, nature, execution, composition, method and date of manufacture or provision, fitness for purpose, uses, quantity, specification, geographical or commercial origin or the results to be expected from their use, or the results and material features of tests or checks carried out on the goods or services;

The price or the manner in which the price is calculated, and the conditions on which the goods are supplied or the services provided;

The nature, attributes and rights of the advertiser, such as his identity and assets, his qualifications and ownership of industrial, commercial or intellectual property rights or his awards and distinctions

How can we fight back?

As consumers we can force the company to comply with what is said in the publicity, as it has exactly the same importance as a contractual clause. If this is not possible we can claim compensation from the company. The best way is probably to use the Spanish consumer arbitration system, taking into account that in order to receive compensation the damages have to be quantifiable. At last resort we can take the company to court.

Other alternatives are to request a complaint form from the local consumer office (Oficina de Consumo), or to initiate a “cease and desist” action through a public administration like the “Instituto Nacional de Consumo” or a consumer association. Unfortunately this administrative procedure is very slow (many months) and most of the time the advertisement campaign is already over when a ruling is produced.

As a rule of thumb always gather all the evidences: keep the printed advertisement (it’s better to keep the full magazine rather than cut out the advert in order to have a context) or for online advertisement, take several screen-shots.